Op-Eds

Nov272018

As a former federal prosecutor, I am clear-eyed about crime. Unlike some reformers, I don’t think our justice system is fundamentally broken, unjust, or corrupt. I have nothing but respect for law-enforcement officials, who put themselves in danger every single day in order to protect the public. I know from experience that dangerous criminals exist — individuals who are incapable of or uninterested in rehabilitation and change. We should throw the book at those people.

But my time as a prosecutor also tells me that not every criminal is dangerous or incapable of living a productive life. My faith as a Christian teaches me that many people are capable of redemption. And my instincts as a conservative make me believe that the government can be reformed to work better. For those reasons, I believe the FIRST STEP Act is legislation that deserves the support of all conservatives.

It deals primarily with time credits that federal inmates can use to secure their transfer from prison to pre-release custody — meaning home confinement, supervised release, or a halfway house. The bill clarifies that most prisoners can earn up to 54 days of credit per year if they “display exemplary compliance with institutional disciplinary regulations.” This is a modest change from existing law, which has been interpreted to allow 47 days of good-time credits per year. In addition, the bill creates a new credit for participating in recidivism-reduction programs or other productive activities that facilitate reentry into society.

Because most of the criticism of the FIRST STEP Act has focused on this recidivism-reduction credit, it’s worth outlining the specifics in more detail.

Not all inmates are eligible to earn the credit. The bill lists 50 offenses, conviction for which disqualifies inmates from the credit. The remaining inmates are eligible only if they are determined to be a minimum or low recidivism risk by the warden of their facility, based on data-based standards developed by the attorney general and an independent commission. For eligible inmates, the warden will individually tailor the type and amount of recidivism-reduction programming and productive activities.

Not all conservatives are on board with these reforms. Senator Tom Cotton (R., Ark.) recently identified four objections to the legislation on these pages. None survive scrutiny.

First, Senator Cotton argues that the term “productive activity” is defined so broadly that it would allow offenders to earn time credits by “playing softball, watching movies, or doing activities that prisoners are already doing.” That argument ignores the reality of the federal criminal-justice system and the plain text of the bill.

The recidivism-reduction programs Cotton is so concerned about are designed by federal prison wardens, not prisoners. Federal prison wardens simply do not award time credits for watching TV. Furthermore, the bill mandates data analysis on the effectiveness of each recidivism-reduction program. If the program is not proven effective, wardens will not award time for participating in it.

Second, Senator Cotton contends that the bill will allow dangerous criminals to win early release. As explained above, the bill categorically excludes offenders convicted of certain crimes and provides that all other offenders are eligible to earn credits only if they are deemed a minimum or low recidivism risk. Cotton dislikes this system because it reflects too much “faith that government bureaucrats can judge the state of a felon’s soul” and is subject to manipulation by a future Democratic president.

But the legislation doesn’t ask “government bureaucrats” to “judge the state of a felon’s soul.” Rather, it directs experienced law-enforcement officers to determine whether an offender is a danger — a job they already do daily, in order to run the nation’s federal prisons. Similar risk assessments have already been implemented in Texas and Georgia, and these states are hardly the post-apocalyptic criminal hellscapes that Cotton predicts such a system would cause.

As to Cotton’s point about tomfoolery by a future administration, if a president wanted to empty the nation’s prisons, tinkering with the standards for earning recidivism-reduction credits would be an odd way to achieve that goal. As Cotton himself acknowledges, the president has broad authority to pardon or grant clemency.

Third, Senator Cotton contends that the bill would allow serious fentanyl dealers to reduce their sentences by half. What he either doesn’t know or fails to mention is that this applies only to the enhancement part of their sentence, not the underlying crime. Under current law, certain second-time drug dealers receive a 20-year mandatory minimum, while certain third-time drug dealers receive a mandatory life sentence. The FIRST STEP Act would reduce those mandatory minimums to 15 years and 25 years, respectively. The Sentencing Commission tells us that, in 2017, 56 people were sentenced pursuant to those mandatory minimums, and that the average sentence for those offenders under our bill would be 211 months — or 17 years and seven months in prison. Not exactly soft on crime.

Much of the reduced sentence in this estimate, according to Cotton, is attributable to the recidivism-reduction credit. Cotton apparently believes inmates will be able to participate in qualifying programs every single day of their sentence. But that is highly unlikely to actually happen, and there’s a limit to how widely available these programs are.

Fourth, Cotton argues against an expansion of the so-called safety valve, which allows trial judges to avoid harsh mandatory minimums in appropriate cases. This distorts the FIRST STEP Act, which maintains important limits on trial judges’ use of the safety valve. Among other limits, offenders are not eligible for the safety valve if they used or threatened violence or possessed a firearm or other dangerous weapon, or if their offense resulted in serious bodily injury or death. They must also cooperate with law enforcement to go after higher-level offenders.

The criminal-justice-reform debate is about first principles as well as policy specifics. Conservatives have a rich history as reformers. Indeed, the most successful criminal-justice reformers of the 20th century were conservatives who understood that law and order is built on the responsible use of government power, tight-knit communities, a vibrant civil society, strong families, and personal responsibility. They applied those values to develop policing methods that dramatically reduced crime and prison ministries that could change people’s lives.